The heckler’s veto over evolution

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The Texas Tech Law Review recently published an article about evolution disclaimers, which contains some interesting arguments about the creationism/evolution controversy generally. Chad Edgington, Disclaiming Darwin Without Claiming Creation: The Constitutionality of Textbook Disclaimers And Their Mutually Beneficial Effect on Both Sides of the Origins Debate, 5 Tex. Tech L. Rev. 135 (2004). Edgington (whose article was published before the Cobb County decision) argues "not only...that disclaimers which call for a critical approach to evolution are constitutional, but that a liberal policy allowing for their placement in textbooks is the most satisfactory solution to controversy surrounding the teachings of origins." Id. at 138.

Edgington notes (rightly) that "[t]he actual motivation behind the ‘equal-time' laws and the disclaimer provisions is the concern that the exclusive placement of evolution in the science classroom provides de facto religious instruction because students are taught that science has proven that their religious beliefs are fraudulent." Id. at 154. This, of course, is only one motivation: the other is the belief on the part of many people that their religion ought to actually be promulgated in public school classrooms, and that the separation of church and state impairs this proselytizing. But Edgington is right that the reason many people complain about evolution education is because they believe that it is a kind of "religion" which is receiving preferable treatment over their own religions. "[B]y exclusively teaching evolution as fact and giving no credibility to the creation model in the classroom, school boards and teachers are inadvertently endorsing a belief system that is wholly incompatible with one of the central tenants [sic] of many religions, namely, that the universe is a special creation of a supreme being." Id. at 154-55.

There are three problems, however, with this argument. First, evolution, being science, differs from religion in that it is a testable, confirmable theory, which can be compared with observed results. The "creation model"--that is, a miracle story--is usually stated in an untestable way, and when it has been stated in a testable way (e.g., that the world was created in 4004 B.C.) such "models" have failed the tests. Second, evolution is taught as fact because it is a fact. It is as factual as any fact can be: it is a truth claim consistent with other testable truth claims. Teaching it as fact is therefore a legitimate enterprise. Creation, on the other hand, posits a supernatural entity which is allegedly "above" being tested for truthfulness. Third--and less abstract--the mere fact that a school teaches something that is "incompatible with" a religion does not mean that that thing may not be taught in the classroom. The government is certainly forbidden from teaching children that God does not exist; but it is not forbidden from teaching children that the earth orbits the sun, or that Israel exists, or that black people are not genetically inferior to white people. These facts may indeed be "incompatible" with the views of certain religious groups, but that does not mean the state may not teach them.

Any contrary rule would mean that religious people would have a heckler's veto over the classroom, or as I've put it earlier, a "get out of evolution free" card. Any time a fact challenged their preconceived religious notions, such people would be able not to silence the teacher and say "that is out of bounds, because we do not want to hear it."

An analogous argument was rejected by the Supreme Court in Employment Division v. Smith, 494 U.S. 872 (1990). There, the petitioners were denied employment benefits because they had been fired for smoking peyote, which is illegal. They argued that their religion required them to smoke peyote, so punishing them for doing so violated their right to the free exercise of religion. The Supreme Court rejected their argument because it "mak[ing] an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is ‘compelling'--permitting him, by virtue of his beliefs, ‘to become a law unto himself,'--contradicts both constitutional tradition and common sense." Id. at 885 (citation omitted). Just as Smith could not use his religious "disagreement" with the peyote law to block the state from prosecuting him, so parents should not be able to use their religious disagreement with the fact of evolution to block the state from teaching it.

Ironically, Edgington follows his statement up with this sentence: "Because such teaching seeks to prove a theory that is ‘incompatible' with the religious beliefs of many students, it would seem to violate the prohibition issued by the Supreme Court that state action may not oppose religion." And this he follows with a footnote that cites Epperson v. Arkansas, 393 U.S. 97, 107 (1968). But here's what the Epperson Court actually said:

[The Establishment Clause] forbids alike the preference of a religious doctrine or the prohibition of theory which is deemed antagonistic to a particular dogma.... The State's undoubted right to prescribe the curriculum for its public schools does not carry with it the right to prohibit, on pain of criminal penalty, the teaching of a scientific theory or doctrine where that prohibition is based upon reasons that violate the First Amendment.

Id. (emphasis added). Epperson said that religious objectors may not silence teachers from teaching facts that people believe contradict their religious views--it did not say that the state may not take any action that "oppose[s] religion," whatever that might mean.

Edgington next provides a rather inflammatory "case study" to demonstrate what he's talking about: "Rape as an Adaptation in Men." Id. at 155. Edgington argues that evolution leads to the principle that morality is based on reproductive fitness: citing Randy Thornhill and Craig T. Palmer, A Natural History of Rape: Biological Bases of Sexual Coercion (2000), Edgington argues that

evolutionary adaptations in humans evolve to help individuals overcome obstacles to individual reproductive success.... [Thornhill and Palmer]'s premise is that if males do not have the traits that are preferred by those granting the permission to mate, they are forced to rely on coercive measures.... [Therefore, a]ccording to the authors, the tendency of some males to rape women is an evolutionary adaptation that arose through random selection and has survived because it enhances male reproductive success by increasing the number of women with which a male can mate.

Id. at 155-56.

What this proves, Edgington argues, is that "[i]f people subscribe to the theory of evolution, they must be consistent with their reasoning concerning all living things and the behavior of all living things.... Thus, if evolutionists [sic] are logically consistent with their beginning assumptions, the end result is morally devastating because the theory of evolution and its implications are a package deal." Id. at 157. If you teach evolution, then "materialism" follows, and in its train, rape, robbery and ruin.

There are several problems with this. For one thing, it appears to commit the nudist fallacy. The mere fact that biology causes a phenomenon does not mean that that phenomenon is right or wrong. This fact is elementary for folks in the biological sciences, who deal with all sorts of biologically caused bad things, such as mental disorders which cause people to murder or rape others. For another, if morality is a product of evolutionary processes--which it is, in some way at least--then there must also be an evolutionary explanation for the notion that rape is wrong, also. Such explanations are, I'm sure, being proposed by evolutionary psychologists as we speak. I am not familiar enough with the controversy that Thornhill and Palmer's book sparked to comment more intelligently on the subject of rape specifically (although the fact that it was controversial is a crucial matter which Edgington ignores completely). But the mere fact that moral beliefs are evolutionary in origin does not denigrate from their rightness or truthfulness, as Daniel Dennett explains in his excellent example of the Boeing engineer.* Also, there are non-theistic explanations for the origins of individual rights and the wrongness of rape, which are perfectly consistent with evolution. And then, of course, many people believe that it is entirely possible to believe in biological evolution as well as theistic explanations for the personality, and of the individual rights that attach to the personality.

The point is, Edgington's argument that evolution = materialism = the destruction of morality is as baseless as when it was first proposed by William Jennings Bryan. It is not that evolution and "its implications" are a "package deal." It is that Edgington has performed a remarkable--though by no means rare--feat of intellectual gymnastics that combines such logical fallacies as the false dilemma, the straw man, and the undistributed middle.

But, of course, it is true that such fallacious thinking is very common among evolution's opponents.

Edgington concludes this argument by saying that "[b]y eliminating the possibility of a thoughtful planner who created the universe, or at least put the elements into motion, the theory of evolution has implications that are detrimental to theistic beliefs, even though it is not a religion or an anti-religion according to the courts." Id. at 157. Well, that may be true, but note the weasel word "implications." What Edgington's passive voice is meant to avoid is the fact that all facts can have "implications" to any number of people, based on their misunderstandings, their corrupt motives, or what have you. The mere fact that evolution can "have implications" (to whom?) which are "detrimental" (to what degree?) to "theistic beliefs" (why do these beliefs alone count in the consideration of this issue?) does not prove that teaching evolution is the same as propagating a religious viewpoint. One might easily construct any number of hypotheses along the same line to show the weakness of this "implications" argument: the fact that good, innocent people suffer from awful catastrophes is a fact that "has implications" that are "detrimental to theistic beliefs": many people turn away from religion because they think a just God would not allow the innocent to suffer. Ought we then to avoid telling students about the Christmas tsunami? Again, it is not a violation of the Constitution for a public school to teach children things that they find difficult to reconcile with their religious predispositions.

It may indeed be true that, as Edgington says, "[t]hese anti-religious implications cause parents and educators, who are trying to instill religious and moral values in their children, to find the theory of evolution repulsive." Id. at158. But a subjective feeling of discomfort is not enough to violate the Constitution. Again, if that were the case, people who are racists for religious reasons could cancel the teaching of Martin Luther King; anti-Semites could control the teaching of issues surrounding the Middle East--education would have to be tailored to suit the feelings of the most sensitive religious person.

Incidentally, Edgington senses a major flaw in his argument, and tries to avoid it when he says that "just because a critical approach to evolution may have religious implications, it is no more a religion or a violation of the Establishment Clause than is instruction on the theory of evolution, despite its religious implications." Id. at 159. But throughout his article, Edgington has argued that teaching evolution is an inappropriate form of indoctrination because it challenges folks' religious prejudices, and this makes them uncomfortable. If that is the case, neutrality would also require the government to avoid hurting the feelings of people who have non-religious prejudices. Since, in Edgington's argument, a way of thinking (i.e., science) is a way of "provid[ing] de facto religious instruction," id. at 154, it would seem that encouraging "critical thinking" would itself also be a form of "de facto religious instruction." It would, after all, offense people whose religions teach people not to think critically!

Edington's article is one of the best-written I've encountered on the subject, despite my disagreement with it. He is certainly correct in pinpointing the reason so many people find evolution education troublesome. But it's unfortunate that he does not also pinpoint their errors.

*--"[A] parody will expose the fallacy: ‘The people at Boeing are under the ludicrous misapprehension that they have figured out the design of their planes on sound scientific and engineering principles...when in fact memetics shows us that all these design elements are simply the memes that have survived and spread among the social groups to which those airplane manufacturers belong.'" Freedom Evolves 187 (2003).

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Jon Rowe has an interesting post up about the question of incorporating the Establishment Clause of the first amendment. It was sparked by a discussion on the Panda's Thumb between Sandefur and another frequent commentator here, Ed Darrell (you have... Read More

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According to Chad Edginton’s website, he has been a “Alliance Defense Fund Blackstone Fellowship Intern, Christian Legal Society” and “Science and History Teacher [at] Park Avenue Christian School.”

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Well, since the Bible is both a science textbook and a history textbook, why not have one person teach both? ;-)

So, is this another example of a Law review not being edited or reviewed before being published?

Sandefuer Wrote:

First, evolution, being science, differs from religion in that it is a testable, confirmable theory

What test has confirmed that the gradual accumulation of random mutations conserved by natural selection has resulted in novel new body forms?

Even more to the point, what test has confirmed that inanimate chemicals self-organized into a living cell?

I haven’t read of such a test yet but I remain on the lookout. Maybe you can help where others have failed.

Good luck with that.

“By eliminating the possibility of a thoughtful planner who created the universe, or at least put the elements into motion, the theory of evolution has implications that are detrimental to theistic beliefs, even though it is not a religion or an anti-religion according to the courts.”

It’s been said before, but I’ll repeat it once again:

Evolution says nothing about a) the origin of the universe, b) setting objects in motion, or c) the origin of life.

Just thought I’d repeat that for those that haven’t been listening.

In response to Mr. Sandefur:

First, evolution, being science, differs from religion in that it is a testable, confirmable theory

DaveScot said:

What test has confirmed that the gradual accumulation of random mutations conserved by natural selection has resulted in novel new body forms?

Even more to the point, what test has confirmed that inanimate chemicals self-organized into a living cell?

I haven’t read of such a test yet but I remain on the lookout. Maybe you can help where others have failed.

Good luck with that.

To the first question, we could look at the Silversword alliance in Hawaii, or the remarkable diversity of mustards, which in the past 2,000 years have expanded to include not only the standard mustards, but also radishes, broccoli, Brussells sprouts, and canola.

To the objection I anticipate that these are plants, we should perhaps point out that there is not really much novel in the animal kingdom once we get to the reptiles. Variations on digits and addition of vertebra give us the range from snakes through elephants, and hummingbirds through ostriches. All with minor variations. The only way such an argument gets credibility is when the gullibility of the reader stops the reader from investigating what has already been observed in plants and animals.

Self-organizing chemicals? Yes, all chemicals self-organize, and so far we have confirmed that each step required for chemicals to self-organize into living things is possible, replicable in experiments. No one has succeeded in getting a eukaryote cell yet. But then, evolution isn’t about the origins of life. Darwin’s observations work whether life was “breathed into” a few forms on the Earth, as Darwin wrote, or whether it arose without any outside pixie dust. So that claim is wholly irrelevant to the discussion. It’s interesting to see that creationists cling to such irrelevancies, however, even when the overwhelming evidence is that their objections are overcome.

If you want the information, Dave, check out Astrobiology Journal. It’s online, and free.

Good comment RPM, I was going to post the same but these fellas are actually becoming boring in their ignorance.

I think the time has come to adjust our stance on this ID thing, it’s patently false. We need to ask them to prove their case and explain the evidence that we have accumulated.

This defending evolution against the ignorant hordes is simply boring. The only reason to do it at all is that it goes by another name as well—-EDUCATION.

Mostly I feel sad that youthful indoctrination can make people so blind they cannot see the evolutionary concept is so sound.

Personally I find the Unemployment vs. Smith decision a dreadful one. The principle of the First Amendment is that yes, the government should have a compelling interest before it starts restricting religious belief and yes, people with sincere religious beliefs do have a right to seek exemption (conscientious objectors, children wearing turbans or hajjibs to school, Orthodox Jews holding sabbath services in their homes [which has been challenged as violating zoning laws in a couple of instances]). And the government never had trouble using the compelling interest rationale when it wanted to.

It’s particularly amusing this decision had the support of Rehnquist and Scalia who then turn and whine about how government oppresses religion.

As to the central issue in your post, very well reasoned, no other arguments.

Lurker Wrote:

So, is this another example of a Law review not being edited or reviewed before being published?

Actually that is the standard for law articles.

To the first question, we could look at the Silversword alliance in Hawaii, or the remarkable diversity of mustards, which in the past 2,000 years have expanded to include not only the standard mustards, but also radishes, broccoli, Brussells sprouts, and canola.

So what was the test that demonstrated that this diversity was the result of the accumulation of random mutations culled by natural selection?

I’ve deleted a comment just now, because it wasn’t substantive. Don’t make me a babysitter, please. It’s not clever, it’s just a waste of everybody’s time and computer memory.

Turns out that the whole group of plants is related, Sven – from the “trees” to the “grasses.” All of them silverswords. Did you look to see? http://www.botany.hawaii.edu/facult[…]versword.htm

DaveScot said: What test has confirmed that the gradual accumulation of random mutations conserved by natural selection has resulted in novel new body forms?

Hey Dave – what “novel new body forms” do humans have that other primates don’t?

The advocates of these labels apparently believe that the scientific community has not been sufficiently objective/critical towards evolution over the years. It does cause one to wonder how evolutionary science has made any progress at all since Darwin.

Genie Scott and Glenn Branch point out three themes that are present in all creationist propaganda:

Evolution isn’t real science, Evolution is anti-religious, It’s only fair to teach both sides.

These memes are recycled continuously on this and other pages from the adherents of IDC (Intelligent Design Creationism), YEC (Young Earth Creationism), IGC (I’m a Genius Creationism) or CNC (Certified Nutcase Creationism). It’s a Malthusian evolutionary strategy: replicate willy-nilly, and, even if they aren’t very well-adapted, some offspring will survive.

For most of these - -C’ers, the bottom line is #2. If their faith were more mature, they wouldn’t have such a problem. How would Augustine have written

Get a grip

Latin or Greek? Come on scholars! Help me out here!

Would that be εχε δη? I was never good at Greek.

Frank Schmidt Wrote:

How would Augustine have written “Get a grip?”

With a stylus.

Thank you, I’m here all morning!

That’s really sticking it to me. Ouch.

Re comment #16833. When I was on law review (30+ years ago, it pains me to say), articles were edited and reviewed, by the editorial board and/or professors and/or practitioners. (Lousy stuff may have gotten published occasionally, but we could share the blame.)

Well my wife is on a law review right now and the only review that is done is on format and references. (This is at a top tier public law school.) From what I can tell the only thing the editors do to review the submissions for quality is to pick enough papers out of the submissions to fill an edition of the journal.

The concept of critical review by experts in the field appears to be foreign in law reviews. IIRC, some famous/infamous legal scholar called it recently massive self publication.

There are some law reviews that are subject to peer review, but not very many. Most of them are edited entirely by students, whose editorial changes are usually only to check citations, make sure quotes are accurate, and so forth. Some student editors are more conscientious–I’m working on an article for New York University Journal of Law And Liberty, and they’ve been really careful to make me prove what I argue. And a lot of it depends on the school; the more prestigious the school, the better quality the students, the better the law review will tend to be. But most law reviews are practically the same as self-publication, and even the Harvard Law Review ran a notorious pro-ID article recently.

The title of Sandefur’s essay, “The heckler’s veto over evolution”, is curiously misleading. He is commenting on a law review article that attempts to justify the inclusion of “disclaimers which call for a critical approach to evolution” in textbooks. These disclaimers do not “veto” or “censor” the textbook. Instead these textual messages are an additional form of speech prepended to the textbook. There is a fascinating irony here since the individuals who now wish to prevent disclaimer statements are really calling for censorship. They want to “veto” the disclaimers.

Consider the following paragraph from Sandefur:

Any contrary rule would mean that religious people would have a heckler’s veto over the classroom, or as I’ve put it earlier, a “get out of evolution free” card. Any time a fact challenged their preconceived religious notions, such people would be able not to silence the teacher and say “that is out of bounds, because we do not want to hear it.”

This is a humorous misrepresentation because it reverses the situation Sandefur is discussing. The censors are the people who want to ban the disclaimers. Sandefur is arguing for censorship in the essay above. He is the one who wants to silence the textbook. He is on the side of the people who “do not want to here it.”

All this self-satisfied dogmatism reminds me of the “The Central Dogma of Biology”: DNA is transcribed to RNA and that is translated to protein. That is the direction of the flow of information. The happy dogmatist would say circa 1960s that this is not just a theory this is a fact! He would warn you never to let any small-minded know-nothing rabid fundamentalist tell you otherwise. Also, he would oppose any wimpy disclaimer stickers on textbooks saying one should “study carefully and critically consider material”. But wait. “The Central Dogma of Biology” was incorrect. Reverse transcriptase was discovered and it can translate RNA into DNA! Well, perhaps a disclaimer can be useful sometimes.

Sandefur states grandiloquently:

“First, evolution, being science, differs from religion in that it is a testable, confirmable theory, which can be compared with observed results.”

OK. This also means that evolution is disconfirmable, i.e., future evidence might show that it is false. So why oppose a disclaimer? If one says that evolution is a “fact” but it might be shown to be false in the future then one is straining the notion of facticity.

Ed Darrell,

The mustards have not mutated into novel new forms of life any more than any breed of dog is a novel new form. There is merely a change of scale in both cases. Existing structures changed size. Observations of what mutation + selection (even unnatural selection) is capable of producing are bounded and that is a simple fact. A simple fact which is denied in The Church of Darwin where bounded observations are extrapolated to unbounded power and the extrapolation is portrayed as a fact instead of an extrapolation.

Not a single experiment has shown that chemicals can self-organize into the structures found in living organisms used in support of self-replication. Even the much touted Urey-Miller experiment in the 1950’s, which is still the state-of-the-art so to speak, which only managed to produce a few simple amino acids, has been shown to have not accurately simulated the conditions of the ancient earth. If you want to know more try googling “RNA world” which is the latest faddish failure in this regard.

caerbannog Wrote:

Hey Dave — what “novel new body forms” do humans have that other primates don’t?

Gene sequencing machines. Space shuttles. Blogs.

Just to name a few.

Empiricist

Very well said. Kudos.

Aggie Nostic Wrote:

It does cause one to wonder how evolutionary science has made any progress at all since Darwin.

What progress would that be?

I’ll cede that evolutionary science falsified Darwin’s Lamarckian belief that acquired characters are heritable.

What else?

You got more entries in the tree of life but no less controversy over how correct the placements.

You can’t even agree on a definition for the word “species” fercrisakes. At least when I went to school it was defined as ability to interbreed and produce fertile offspring. Now that’s dashed. That isn’t progress.

If you mention any bit of biochemistry, medicine, or the like I’m going to raise an objection in that those have no dependencies on Darwinian theory of descent with modification. No part of any of those gives a fig about whether birds came from dinosaurs or not. Chemistry and medicine work the same regardless of whether one believes God created everything for a purpose, it all happened by accident, or some combination thereof.

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It’s been said before, but I’ll repeat it once again: Evolution says nothing about a) the origin of the universe, b) setting objects in motion, or c) the origin of life. Just thought I’d repeat that for those that haven’t been listening.

Actually, many people have been listening and reading editorials written by evolutionists, etc. It seems that only where there are free forums where the evolutionist will actually have to back up some of their vast mythological narratives of naturalism will they begin to limit the scope of “evolution” as you try to.

E.g., “Evolution is the framework that makes sense of the whole natural world from the formation of atoms, galaxies, stars and planets, to the AIDS virus, giant redwood trees and our own health and well-being. …. Dorothy was lucky because the Wizard of Oz was wise. The wizards of the Kansas State Board of Education look foolish in comparison.” –Dr. Maxine Singer President of the Carnegie Institution of Washington (Washington Post, August 18, 1999)

More? There is more. It is as if there is a public definition and a private definition of the buzzword “evolution.” And there seems to be specious and disingenuous rhetoric among evolutionist relying on the intellectual dishonesty of shifting the definition of “evolution” this way and that, all around.

Everyone who disagrees with evolution is “foolish” or “ignorant” for not knowing the definition of evolution, yet the evolutionists do not seem to know what they are talking about.

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One thing that is missing from all the discussion of the heckler’s veto is that the people pushing to include these stickers in textbooks are not just trying to excerise their own personal heckler’s veto, but are trying to make sure that everyone around them is vetoed as well. It’s even more insidious than the Smith case where the people involved only wanted to do something that would affect them personally.

Also, mynym says:

This would all be moot if parents could spend their own tax money to educate their children as they saw fit. I.e., you would not find yourself discussing the vagaries of Judiciary, those who Jefferson called “ . …the subtle corps of sappers and miners … “, etc. But some of the same educators who maintain the textbook orthodoxy are those who reject school vouchers, etc. They want to continue indoctrinating children, by force of the State through judicial diktat if necessary, with Naturalism. That is the foundation of socialism, after all. They do not seem to believe in freedom of Conscience. For after all, they do not agree with the Founders in believing that consciousness itself is free of the physical. So they cannot seem to grasp the difference between education and their indoctrination.

The problem with that is that parents don’t spend their own tax money to educate their children, they spend everyone’s tax money, which is also the problem with school vouchers. The education system could not survive if the general public did not finance it. If it is possible for a parent to spend their own tax money to educate their own child, then why is it not possible for a child-less taxpayer to take their own education tax money and spend it on something else instead? The answer is that we, as a society, place an emphasis on the education of our children, so the government collects taxes from all to educate all the children. If we allow parents to use vouchers to send their kids to parochial schools, the effect is that someone else’s tax money will be paying to support those schools, which would be violating that person’s right to not fund non-secular institutions. This isn’t a case of “freedom of Conscience” as you put it or about Naturalism. It’s about keeping the government free from the entaglements of religion and upholding the wall of separation between church and state.

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“Justice Thomas explained in his opinion in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), a very strict disestablishmentarian reading of the Fourteenth Amendment causes some very serious conundrums as far as the limits of state authority are concerned”

I’m unclear here. Are you for or against the position held by Thomas and the antidisestablishmentarianists*? In the interests of devil’s advocacy, I’m going to disagree with you. So if you are a proantidisestablismentarianist, I’d be an antiproantidisestalishmentarianist, otherwise an antiantiantidisestablishmentatistista**. 1,3,7-trimethylxanthine brings out my sesquipedalian tendencies. *29 *37

About dogma: I have not seen or read the textbooks the non-forbidden stickers were stuck to. But I can draw on my experiences as a former public school student. What I’m wondering is do the texts teach evolution as received wisdom, or as a testable replicable theory students can validate for themselves? In 9th grade we had a class called “chem-phys” in which physics and then chemistry were taught by the scientific method. Starting with gallileo and the speed of falling objects, we went through Hook’s Law and Boyle’s Law and Cole’s Law with experiments that demonstrated that they worked. But by 10th grade biology and senior year economics, we had gotten away from this use of scientific method and critial thinking, and were just supposed to learn by rote the received wisdom. The authority was the teacher, and behind the teacher was the principal, and behind the principal was the government, and the government was allpresent, allknowing, and allgood, but a jealous government, saying, thou shall have no other governments before me. I did not learn until college that evolution is testable and readily verifiable, and that biologial evolution is a subset of the general role of evolution as a key component of systems theory. I also learned that they Keynesian macroeconomics fed to us as dogma in high school was unsound - it wasn’t after all that I was too stupid to understand economics, it was that they’d been preaching a set of lies to support statism. I suspect that some of the objection from the creationist camp to the social function of the teaching of evolution in public institutions, is that it is being used to support “scientific socialism” and statism. This might be a form of either violation of the establishment clause or of free exercise. It’s also bad science. I think it is in the interest of creationists and evolutionists to oppose the teaching of evolution in a dogmatic manner, and that it is in the interests of the military-industrial-NEA complex to teach it that way, with resulting harm to society. From this perspective, the alliances shift, and forces that are currently bitterly opposed have a common cause, if they can somehow learn to work together. One simple way to disrupt the cooptation of evolution is to loudly and widely spread the meme that Darwin got his key insight from reading Adam Smith’s Wealth of Nations. Smith shows how no central authority or intellegent design is needed to efficently manufacture something like a pencil. Darwin applied those ideas to finches in the Galapagos. The economic principle of comparative advantage results in specialization and speciation, so that from lower forms of life evolve higher ones, culminating in God’s magnificent creation, the aardvark.

Thanks for the brief exposition, Timothy. I guess I’d say that, generally speaking, I have no problem with states being able to support a particular religion or even a denomination. I don’t think that it would be a good idea, from either a political or a religious perspective (nor does it seem likely even if it were possible), but as a legal matter I don’t see any reason why the federal government should overrule it, if that’s what the people of the state want. For those that didn’t like it, they’re always free to move to another state, same as if they don’t like the tax laws in the state where they live.

aa Wrote:

I think it is in the interest of creationists and evolutionists to oppose the teaching of evolution in a dogmatic manner

That all depends upon how you frame the ‘interests’: some evolutionists are quite interested in teaching it in a dogmatic manner, so they can beat conservative Christians over the head with it. And many creationists are just as interested in having it taught dogmatically, so that they can use it as proof that evolution=dogmatic atheism. It’s a symbiotic relationship.

Mike S:

some evolutionists are quite interested in teaching it in a dogmatic manner

Can you think of particular instances of this? I rather suspect that it’s just easier to teach a lot of things “dogmatically” rather than well.

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Oh, I should have read the entire post.

Here it is in a nutshell: Not only does the Constitution leave all religious rights and duties in the hands of citizens, first by not delegating anything to churches in the operation of government nor to government in the operation of churches, in Articles I, II, III and IV (the state government article), but the Constitution then expressly forbids Congress from carving out any new structures that might circumvent that plan, by saying Congress cannot even legislate in the area.

So the states lack the authority to expressly support religion from the federal Constitution.

Whether a state could have established a church is the wrong question: All states disestablished before the union was made, and no state ever backtracked on that plan. New states all came into the union without established churches or any authority to establish a church, under their own constitutions.

So, simply, there is no federal or state constitutional well from which anyone could draw the authority to have government do the churches’ jobs. “Congress shall make no law” simply means that Congress cannot create a new structure of any stripe to get around the other bans. It’s an appositive statement, a restatement and reinforcement of other bans.

If a school district wished to endorse religion, on what grounds could it claim the authority to do so? School districts are arms of the state government, and so they would need to look to the state’s authority to delegate to them. The states lack such authority under their own constitutions – the people have withheld that power from the states. A school district might, in a final plea, appeal to Congress, but Congress is especially estopped from providing such authority.

A school district can’t endorse stickers unless they are delegated authority from some other body. The state constitutions prevent the state legislatures from making such a delegation, and the federal Consitution forbides Congress from making such a law. Without that authority, the school boards may not act within the bounds of the law.

A lot of this discussion of the 14th Amendment is hoo-haw required to get around Barron v. Baltimore without flatout noting that it was a bad decision, made by “activist” judges I suppose. But we don’t even need to go that far if we just read the state constitutions and note that there never has been delegated from the people any power for government to take such a role in religion. It’s the wrong question to ask.

I was always taught that the 14th amendment applied the Bill of Rights to the states:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

So states, and school boards, can’t endorse religion.

That’s true, Frank, but it’s not the whole story. The 14th Amendment doesn’t expressly apply the BOR by its own language - it’s implied, which is the sort of thing conservative jurists hate. The sticky part is figuring out which parts of the Bill of Rights were implied to be applied to the states. Modern jurists, at least the ones who are fun to have around at parties, say it’s the whole thing, and that’s working pretty well for us. But it took a while to get there - for a while it looked like the BOR was going to be dribbled down to the states bit-by-bit. And, obviously, there are still some malcontents (*cough*Thomas*cough*) who think that this whole “rights” business has just gone too far, and that the states should be free to undisestablishmentize themselves and get right with Jesus.

Mr. Darrell is wrong that the states had all disestablished by 1778. In 1789, New Hampshire, Massachusetts, Connecticut, Maryland, South Carolina, and Georgia all had established religions. Virginia only eliminated its established church in 1785. It was not until 1834 that all states had abolished their established religions—well after the ratification of the Establishment Clause. See Michael McConnell, The Origins And Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1437 (1997). It is therefore not true that “[a]ll states disestablished before the union was made, and no state ever backtracked on that plan,” and, shall we say, something of an exaggeration to say that Professor Amar, one of the most well respected members of the legal academy (and rightly so) is somehow ignoring the facts. Have you read Amar’s book, Mr. Darrell?

As to whether the Bill of Rights really was intended only to apply to the federal government, as Amar shows, that proposition is indeed shakier than some people have assumed, and I think there’s an extremely good argument to be made that it was intended to apply to states as well, or at least some of its provisions. Certainly amendments like the second or third or fourth never refer to the federal government explicitly, as does the First Amendment. Amar calls the position that the Bill of Rights was originally intended to apply to the states as well as the federal government “Barron contrarianism,” in reference to Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833) (which, incidentally, was written by Chief Justice Marshall, not by Joseph Story), the Supreme Court case that held that the Bill only applies to the feds. As Amar and others have shown, Barron contrarianism was one of the fundamental principles of anti-slavery constitutional scholars, and thus laid the foundation for the Fourteenth Amendment. (I should add that Barron was very far from being an “activist” decision; if anything, it served the interests of “judicial deference,” because a holding that the Bill of Rights applied to the states would have seriously threatened the power of slavery.)

Although Madison was extremely outspoken as to the evils of established religion, as was Jefferson, their view was in the minority at the time that the Constitution was ratified. The argument, therefore, is that it would be wrong to interpret the First Amendment in the way that they would have—it is instead proper to interpret it in the way that those who ratified the Constitution understood it.

If we assume that Barron was correct, then the states retained (before the Fourteenth Amendment) the “residual sovereignty” to legislate over all matters not specifically delegated to the federal government by the Constitution. As Madison put it,

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

Thus the states would have the power to “to expressly support religion.” Take, for example, government-supported education, of which Mr. Darrell is quite fond. The states would have, and did in fact exercise, long after the ratification of the Constitution, the authority to take money from citizens and use it to preach an established religion to children, despite the fact that doing so is beyond the legitimate authority of any government.

My point is that Mr. Darrell is overstating a noble case. States lack the legitimate political authority to establish religion, regardless of the First Amendment or the Fourteenth Amendment, because doing so violates natural rights. But that doesn’t mean the federal government has the authority to stop them. What gave the federal government that authority was the Fourteenth Amendment.

I do not understand Mr. Darrell’s argument that “the states lack the authority to expressly support religion from the federal Constitution…there is no federal or state constitutional well from which anyone could draw the authority to have government do the churches’ jobs” The states obtain their sovereignty from the people within that state. While the federal government has only that authority that is granted in Article I section 8 of the Constitution, the states are generally believed to have all legitimate political authority that is not denied them. What is not denied is permitted for states; what is not permitted is denied to the federal government. I have serious qualms with this interpretation, but it is by far the prevailing interpretation. And if it is not—if Mr. Darrell is right that there must be some federal or state constitutional well from which to draw the authority to have the government do the church’s job—then whence do states draw the authority to run a public education system (which was inn many places traditionally seen as the church’s job)? In American history, government-run education has been seen as one of those unspecified general political powers which states may exercise because it is not explicitly denied them. Mr. Darrell seems to have led himself into a contradiction.

Mike S. writes

generally speaking, I have no problem with states being able to support a particular religion or even a denomination. I don’t think that it would be a good idea, from either a political or a religious perspective (nor does it seem likely even if it were possible), but as a legal matter I don’t see any reason why the federal government should overrule it, if that’s what the people of the state want. For those that didn’t like it, they’re always free to move to another state, same as if they don’t like the tax laws in the state where they live.

Well, I appreciate his candor. The argument that using the government to support a particular religion is a violation of individual freedom rests on the principles best articulated by Thomas Jefferson in his Statute of Virginia for Religious Freedom (passed in 1782, four years after 1778). In it, Jefferson says “that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.” I agree with this, and I think violations of this principle are not only unjust, but unwise, as historical experience has demonstrated.

Fraser writes

Barring cases of say religions calling for human sacrifice or child rape (or other “compelling interest” cases) the government has no business deciding which religious practices are acceptable—which Smith gives authorities the power to do. The gains to religious freedom (something about which I am passionate) more than outweigh the problems.

Why bar religions calling for human sacrifice or child rape? Seriously. Why are they excluded? Plus, keep in mind that Smith does not, I repeat, does not allow government to “decide which religious practices are acceptable.” Government has absolutely no authority to do that, before or after Smith. Instead, that decision addresses whether government must grant special treatment to persons on the grounds that their religion requires it. The question arises when government passes a general law that has nothing to do with religion, but which a person finds objectionable because of his religion—for instance, when the government bans hats, but a Hindu needs to wear a headdress; or when the government requires all children to attend public school, but the Amish say this contradicts their religion. Under what circumstances is government required to accomodate the needs of those with special religious sensitivities? That is what Smith addresses. It does not address whether the government may decide which religious practices are acceptable. Fraser’s point that the religious sensitivities in question are passionately held and very old does not change the issue at all. The question is, when government decides on a policy, does the Constitution require it to change that policy whenever a religious person raises an objection to it on religious grounds?

If the answer to that is no, then we will have serious problems such as Fraser’s prison-food example. That is a serious consideration. But if the answer is yes, we have even worse problems, as when a prisoner makes up a religion and says that it requires him to eat steak for dinner, (I am not making that example up: see Theriault v. Silber, 453 F. Supp. 254, 260 (W.D. Tex. 1978)), or when people claim their religion requires then to engage in all sorts of illegal conduct, such as human sacrifice or child rape. Fraser puts these off the table—but on what grounds? “Compelling interest”? That’s an awfully vague answer.

Again, it is vital to keep in mind that Smith does not in any way create “a system where believers will only be able to practice only with government consent.” No. It does create a system in which people who receive government benefits must choose between forgoing that benefit or abiding by government conditions that they may find upsetting; it does create a system in which government may pass general laws that bother sincere religious persons; it does create an incentive for legislators to disguise their attacks on religion as “general” laws, as in the Hialeah case. But we have to make choices in life, and it does not seem to me to be a Constitutional violation when the government says “here is a general law which all must obey, and if your religion requires you to violate it, you don’t get out of jail free.” Nevertheless, I acknowledge there are serious problems with that holding and it does make me uncomfortable, because I do think we need to defend to the death each person’s right to disagree.

Colin’s comment unfairly characterizes Justice Thomas’ opinion in Zelman. Those interested can read the opinion here. Thomas clearly states that

in the context of the Establishment Clause, it may well be that state action should be evaluated on different terms than similar action by the Federal Government. ‘States, while bound to observe strict neutrality, should be freer to experiment with involvement [in religion]–on a neutral basis–than the Federal Government.’ Thus, while the Federal Government may ‘make no law respecting an establishment of religion,’ the States may pass laws that include or touch on religious matters so long as these laws do not impede free exercise rights or any other individual religious liberty interest.… Whatever the textual and historical merits of incorporating the Establishment Clause, I can accept that the Fourteenth Amendment protects religious liberty rights.…

(emphasis added). This is rather different from suggesting that states “should be free to undisestablishmentize themselves and get right with Jesus.” In fact, it is exactly the opposite from such a suggestion, and Colin ought to know better than to mischaracterize Justice Thomas’ views in this way.

Timothy Wrote:

In fact, [Justice Thomas’ view] is exactly the opposite from such a suggestion, and Colin ought to know better than to mischaracterize Justice Thomas’ views in this way.

I stand by my characterization. I should note, though, that neither “undisestablishmentize” nor “get right with Jesus” are legal terms of art, and I accordingly reserve the right to define (or re-define) them however I please, at any time that is convenient to me. In other words, I wasn’t worried much about detail or precision. My basic point is that Thomas is hostile to the [entirely correct, socially responsible, and beloved by God] idea that the Establishment Clause is applied to the states by the 14th Amendment.

I see a lot less in that excerpted passage than you do. Or, at least, what I see is not reassuring at all. To me, and I think to Thomas, what he’s saying is that he’s willing to live with free exercise incorporation. I’m not worried about Thomas’ stance on free exercise - it’s his establishment jurisprudence that I find troubling. Hence, my concern that he’s willing to let states “undisestablishmentize” themselves. Do I really think he’d let Texas set up the Official Texas Baptist Congregation? No… Probably not. But that’s not how the question will come up, is it? The devil is in the details, and Thomas’ idea of ‘establishment,’ especially as applied against the states, isn’t nearly enough of a wall between church and state to suit me.

Moreover, I’d stress different parts of that passage. I deeply question Thomas’ idea of “strict neutrality” - I wonder if he thinks neutrality is necessary as between Christian denominations, or between Christian and non-Christian faiths, or between religion and non-religion? Whatever his approach is, I get the feeling I wouldn’t like it much. For instance, when he says that “the States may pass laws that include or touch on religious matters so long as these laws do not impede free exercise rights or any other individual religious liberty interest” I don’t think he’s including the right to be free of religion.

What’s the practical impact? I don’t know, especially since he’s moderated by the rest of the Court. But my original, albeit too-sarcastic and too-shallow point remains: Thomas is much, much too permissive on establishment clause jurisprudence. To whit, he doesn’t think that it binds the states. I strongly disagree.

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Mr. Sandefur said:

I do not understand Mr. Darrell’s argument that “the states lack the authority to expressly support religion from the federal Constitution … there is no federal or state constitutional well from which anyone could draw the authority to have government do the churches’ jobs” The states obtain their sovereignty from the people within that state. While the federal government has only that authority that is granted in Article I section 8 of the Constitution, the states are generally believed to have all legitimate political authority that is not denied them. What is not denied is permitted for states; what is not permitted is denied to the federal government. I have serious qualms with this interpretation, but it is by far the prevailing interpretation. And if it is not—if Mr. Darrell is right that there must be some federal or state constitutional well from which to draw the authority to have the government do the church’s job—then whence do states draw the authority to run a public education system (which was inn many places traditionally seen as the church’s job)? In American history, government-run education has been seen as one of those unspecified general political powers which states may exercise because it is not explicitly denied them. Mr. Darrell seems to have led himself into a contradiction.

I don’t have the time right now to provide the response Mr. Sandefur’s piece deserves. He’s right – the prevailing belief among legal scholars, especially conservative ones, is that the states at some time after 1789 had the right to establish churches, and so the First Amendment may be limited in some way. I’ll summarize my argument by pointing out that the trend to religious freedom has been away from established churches in the states since they were disestablished in 1778. No state ever acted to reverse that action. The argument that the states had the right after 1789 rests on the erroneous assumption that states had fully established churches in 1787 and 1789. But that is not the case. At best there were established churches in four states; a closer examination shows that none of the four was a fully-established church.

I regret I was unclear. What I meant is that states were not delegated any authority from the federal Constitution to do anything in religion. A careful study of the constitutions of the states will show that the people did not delegate such powers to the states, in the state constitutions, either. The states since 1787 have never had the right to establish a church. Had the First Amendment been intended to reserve that right for the states, it would have had to specifically grant such a right first, because such a right did not exist for them at the time.

In sum, the states cannot rely on a federal delegation to dabble in religion. Nor has any state been delegated that power from its people in the state constitutions.

Consequently, there simply is no authority that any government at any level has to dabble in religion. Madison was clear, there is no legitimate political authority for any government over religion. The state constitutions are clear. The federal charter is clear. I’m not sure where anybody got the idea it was otherwise. History’s trend on religious freedom is one-way.

The comparison of education to the right to be free from government interference in faith issues is a non-starter for me. There is no right to be ignorant for most purposes, to pose against the right of a citizen to be free from government interference in religion. The very idea is bizarre. While it is true that churches urged education, and sometimes provided it, there is no inherent reason that education should be considered a religious act. In fact, the “founders” were quite clear that freedom of religion rests on education, in the various Northwest Ordinances for example, where education is “encouraged” in order to promote a general trend to morality. Jefferson was more direct, perhaps, when he noted that people who could read scriptures for themselves could not be held in bondage by a priestly class who interpreted scriptures to an illiterate people. Education in the U.S. was tending toward civicly-provided, secular education by 1750. That trend also did not change.

In any case, several state constitutions specifically delegate powers in education issues to the state governments. I see no contradiction where education is specifically delegated to the government and religion is not. The duties of the states are clear: Do what the people delegated to them to get done.

On the issue of stickers, I think we agree: States don’t have the authority to order a sticker in books for religious reasons. Whether they’ve lacked that authority since 1778 or since the 14th Amendment, they lack it now.

Your stuff is always good, Mr. Sandefur, and you’re always polite. I always learn something.

But there are some other nits: Jefferson wrote the Statute for Religious Freedom in 1779 according to his notes; it was passed into law in 1786, the legislative session following Madison’s petition we know as Memorial and Remonstrance. The proposal in Virginia in 1785 was not to disestablish, but to re-establish, since the state support for the church had been dropped in 1776 (with a few sticky issues on glebe lands hanging on). And, the views of Madison and Jefferson were obviously not in the minority – they won a majority in Virginia, at Philadelphia, and they prevailed in the ratification of the First Amendment. None of those passed by a plurality, but instead by a supermajority in Congress and a supermajority of the state legislatures.

Wow, I had no idea that I was opening up a serious argument. I’m honestly a little surprised by the vigor of your response; my contribution was half-hearted and half tongue in cheek. Well, let me set out where I stand. My razzing about “unantidesestablishmentize” means that Thomas does not think that states are subject to the Establishment Clause, and that what I would call Establishment Clause violations could arise from that. In other words, Thomas wouldn’t enforce the EC against the states, and the states would take advantage of the leeway. I assume our disagreement is more or less confined to the first part - my reading of Thomas’ position. I don’t think I’m misrepresenting him at all.

You say, “I see nothing in Zelman to suggest that Thomas ‘doesn’t think that [the Establishment Clause] binds the states.’” I disagree, because I read Zelman differently. But it’s a moot point, because Thomas is explicitly clear in Newdow.

Thomas, in the first paragraph, writes: Because I agree with The Chief Justice that respondent Newdow has standing, I would take this opportunity to begin the process of rethinking the Establishment Clause. I would acknowledge that the Establishment Clause is a federalism provision, which, for this reason, resists incorporation.

In the first paragraph of Section II, he continues: I accept that the Free Exercise Clause, which clearly protects an individual right, applies against the States through the Fourteenth Amendment. But the Establishment Clause is another matter. The text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments. Thus, unlike the Free Exercise Clause, which does protect an individual right, it makes little sense to incorporate the Establishment Clause. (Citation to Zelman omitted.)

I read “resists incorporation” as “does not bind the states.” Accordingly, I stand by my statement. As far as I can tell, Thomas’ position is essentially this:

Free Exercise is an individual right, and therefore rightly incorporated by the 14th Amendment. Establishment, though, is all about federalism, and it doesn’t make sense to incorporate it. It would be meaningless, like trying to incorporate the Commerce Clause.

I see that, and it’s not an insane argument. I don’t agree with it, though. I think the Establishment Clause creates an individual right, however it was originally understood. Thomas acknowledges my opinion:

The best argument in favor of incorporation would be that, by disabling Congress from establishing a national religion, the Clause protected an individual right, enforceable against the Federal Government, to be free from coercive federal establishments. Incorporation of this individual right, the argument goes, makes sense. I have alluded to this possibility before. (Citation to Zelman omitted again.)

I think this is exactly right. The EC does create an individual right to be free of any religious institution invested with the power of law. If it wasn’t written that way, then it has certainly come to embody a right that I believe is crucial to civil society. Is that the best-supported argument from a historical perspective? You would know better than I. But it’s the approach that I feel is correct and responsible, and the one I want the Court to take. I agree with you that EC jurisprudence has to be a little different when applied against the states from its application against the federal government, but I don’t think it’s a significant problem. At least, it’s a smaller problem than not incorporating the clause would cause.

So, whereas you say my take on Thomas’ view of incorporation is a “brazen” misrepresentation, I think it’s exactly right. He doesn’t think that the EC is incorporated by the 14th Amendment. Am I missing something? ___________________

Now, you seem to argue in your comment (please correct me if I’m misreading you) that incorporation of Free Exercise cures this, because it covers all the same potential violations. I really don’t think that’s right, for two reasons.

First, I’d follow the lead of statutory construction pedantism and say that two clauses don’t mean the same thing. (I realize that this argument is hot air if you assume that the EC is a federalism rule, but I don’t, so it’s worth mentioning.) One clause protects a citizen’s right to worship freely, and another protects another set of rights. The right to be a citizen of a state unbeholden to religious interests, for example. They’re related but very different rights. They blend together almost completely if you assume that “free exercise” means the right to not exercise, I suppose - then a citizen has the right to not have tax dollars applied to sectarian causes without a good secular reason. That’s getting fuzzy, though, and I haven’t thought it all the way through. Suffice it to say, for now, that I see the two clauses as protecting different rights, because FE isn’t a negative right. I see FE and EC as the positive and negative sides of the same basic concept.

Second, we’re back to how a jurist like Thomas would see ‘neutrality’ in an EC situation. Now I don’t know what Thomas’ position is. I do know that a lot of conservative jurists see the necessary neutrality as being only between Christian denominations, or, more realistically, only between religion and non-religion. In other words, many jurists would say that the state is free to establish religion in general, so long as it doesn’t favor one sect over another, but that it can favor religion over atheism. I think this is abhorrent, and I won’t take the easy road out, which is arguing that atheism is essentially just another religion to be respected. I think atheism (or, more properly, anything outside the scope of “religion”) is qualitatively different, and still entitled to protection. I’m *not* saying that Thomas takes any of the above positions, only demonstrating potential problems with an unincorporated EC.

Now, those two points are muzzy, and lacking the details you so pointedly demand. I’ll blame the lateness of the hour. You ask a simple question to bring out the important distinction, though, which is this - “[W]hat injury is caused by establishment that is not already addressed by the free exercise clause?” It’s a good question, and I don’t have a killer answer. My first instinct is that one answer would lie in the borders of ceremonial deism; when government crosses the line in recognizing a supreme being or beings, but doesn’t commit serious resources to the recognition (I’m thinking particularly of donated monuments), what free exercise right has been violated? Certainly, if free exercise has a negative component, then that has been violated, but I’m not sure that there is a strong negative component. I see the negative side of free exercise as being more properly covered by the Establishment Clause, which was incorporated by the 14th Amendment along with the Free Exercise clause.

In other words, if the State of Texas sticker on state textbooks that read “Be a Good American and Worship!” then Thomas would say, “That’s not a free exercise violation, because no one is being prevented from worshipping as they please. And it’s not an establishment violation, because Texas can’t violate the Establishment Clause, because the EC only exists to protect Texas from federal incursion.” I would say that that’s an example of a harm that’s not covered by the incorporated Free Exercise Clause, because I think that would violate the individual right to be free of state-supported religion.

So that’s my take. In short, I think I’ve accurately characterized Thomas’ position, and I don’t like it because it’s different than mine. I apologize for any lack of detail; it’s late and I’m tired and con law was never my specialty. I find the arguments about the historical nature of the EC interesting, if not dispositive, and I look forward to learning more about it. Thanks.

Colin

Bah, I totally forgot to mention - I’m from Lubbock, the home of Texas Tech, and went to church across the street from the university for twenty years, give or take. Most of my religious education was from a priest who also taught philosophy there. It’s a small world.

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Mr. Sandefur said:

So when Mr. Darrell says “[t]he states since 1787 have never had the right to establish a church,” that can be taken two ways. As a matter of legitimacy, of course, that’s true, because established religion is unjust, and no government has a right to establish religion. But the federal constitution does not appear to prohibit it, prior to the adoption of the Fourteenth Amendment. So they could constitutionally get away with it. The First Amendment carefully only says that Congress shall make no law respecting an establishment of religion—wording intended to preserve the states’ authority to maintain the established churches that existed until the 1830s in some places. Since states are not forbidden from establishing religion, the Tenth Amendment reserves that right to the states. I think it would be swell if we could say that the states had no authority to maintain established religions, but that only becomes true with the adoption of the Fourteenth Amendment in the 1860s. And really, that ought to be good enough.

The federal constitution prohibited established churches in the states by the simple method of failing to delegate that authority from the citizens to the states. There is nothing in Article IV that grants a state the right, privilege or duty of establishing a church. Claims that such a right exists rely on some ghost article that no one has ever seen, even in spectre form.

No established churches existed after 1778, if we include the trappings of establishment such as appropriations from the public coffers, formal roles in government, specific grants of land for churches, etc. The ONLY vestige of establishment that existed after 1787 was that four states would, if the taxpayer consented, act as a pass through for tithes. Is that an establishment of religion? How does that differ from granting a tax deduction to a citizen for contributing to a church, in substance? Are we next to hear, as the reconstructionists have on occasion argued, that such tax deductions are, indeed, establishments? Unworkable, as well as bizarre. What other powers did these established churches have? Where is the legislation?

Only Massachusetts had even that single-hair-of-the-head establishment after 1816. And for what it’s worth, John Adams and other Massachusetts “founders” fought to get rid of that – indicating once again that there was broad agreement that government and church should not be mixed.

Since the states did NOT have established churches in 1787, nor the power to establish them, if the Congress had intended to “preserve” such a right in the First Amendment, they would have had first to have spelled out what the right was. But instead of listing such a right to the states, the amendment instead lists religious freedoms as belonging to citizens. Then it says these rights are so sacred that Congress cannot legislate in the area.

Where in the First Amendment is there any “preservation” of state churches? Certainly not in the plain language.

If you have any legislation passed by any legislature after 1778 which re-established a church, I’d like to see it with references. I’ve been looking for years.

Ours is a limited government. It may do only what it is delegated from the people. It is true that there is no prohibition on states establishing churches – there doesn’t have to be. In a limited government where the government can only do what is delegated to it, there must first be a delegation of such authority before it could be banned.

Where is that delegation? It doesn’t exist.

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I’ve explained already why Mr. Darrell fundamentally misunderstands the Constitution. He says “The federal constitution prohibited established churches in the states by the simple method of failing to delegate that authority from the citizens to the states.” But the federal constitution does not delegate any authority from the citizens to the states. That’s not its job. It delegates authority to the federal government. But the federal constitution is not intended to delegate authority of any sort from citizens to their states; states receive their authority from state constitutions, not from the federal constitutions. States may exercise any authority that is not forbidden by the Federal Constitution, and they receive that authority from their citizens directly, not from any intermediary federal step.

Further, Mr. Darrell says “if the Congress had intended to ‘preserve’ [a state’s authority to establish a church] in the First Amendment, they would have had first to have spelled [that] out.…” But, of course, they did spell it out. They wrote “Congress shall make no law respecting an establishment of religion,” which forbade the federal government from disestablishing churches. That’s the plain language. If the First Amendment forbade states from establishing churches, it would have said “Congress and the states may not establish religion.” Instead it forbids Congress from writing a law to disestablish a state’s church, and then it reserves all powers not prohibited, to the states.

Mr. Darrell is of course right that “Ours is a limited government.” But it is limited in two ways. First, by our natural rights—no government may ever violate natural rights. But that doesn’t mean that the federal government has the authority to interfere when a state does violate natural rights. It only has the authority to do so under the Fourteenth Amendment. The second way that government is limited is through the enumeration of powers. But this applies only to the federal government: the federal government is one of enumerated limited powers. States are not. They are governments of all residual sovereignty. That means that they are limited only by natural rights, as well as the specific prohibitions in the federal Constitution or the state Constitutions. But they may do anything not forbidden, while the federal government may do only what is permitted.

Let us pause to make sure we use our terms clearly. All governments are governments of delegated powers from the people, because all just government rests on the consent of the governed. All governments are governments of limited powers, because our natural rights limit all government. (As the Declaration says, the just powers of government rest on the consent of the governed.) Not all governments are governments of enumerated powers. Only the federal government is. The states do not receive their powers by delegation from the federal Constitution at all—it exists only to specify the powers of the federal government, not the states; instead, state governments receive their powers by delegation from the people within that state, via the state constitution. And the people are free to put whatever they want in their state constitutions so long as it does not violate the Federal Constitution or natural rights.

I’ve been skimming this topic here b/c it interests me. I’ll read it in more detail later.

I’d like to publish something about this, but I’m not sure if I have the intellectual prowess to write anything that will make a difference. Or perhaps my ideas have been done already by other people, probably much more qualified than I.

Here’s how I see it: I agree with the “victimless” framework regarding the establishment clause. That, in order for the EC properly to be incorporated, it must related to an individual right.

However, LIBERTY rights are not the only rights properly incorporated and protected; EQUALITY rights are properly incorporated as well. When our founders spoke of unalienable rights, they typically grouped Liberty with Equality. And in Madison’s Memorial and Remonstrance, he makes it clear that all men, by nature, possess unalienable Free AND Equal rights of conscience.

I know Phillip Hamburger and Noah Feldman have argued against this interpretation. And they may be just too above me for me to be able to refute them. And refuting them certainly requires accepting natural law as binding – that men by nature have free and equal rights. Otherwise if we simply look to dominant opinion, we might rightly conclude that the populace didn’t think so highly of equality back then. But Justice Thomas DOES accept natural law.

When I saw Phillip Hamburger speak at Princeton, he noted, that “the Establishment Clause is not an equal protection clause” to which another speaker replied – and this was one of the wittiest retorts I’ve ever heard – “yes, but the equal protection clause IS an equal protection clause.”

And this reflects what Amar wrote in his book on the Bill of Rights that even if the EC is not properly incorporated, much of what the Court has that clause doing would be proper under both the Free Exercise AND the equal protection clauses, both of which reflect the natural fact that men have unalienable free AND equal rights of conscience.

That’s my argument.

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Timothy Sandefur Wrote:

I agree with this, and I think violations of this principle are not only unjust, but unwise, as historical experience has demonstrated.

I was a bit too cavalier in my comment about states establishing churches. I too, think it would be unjust and unwise (and said almost as much above, although I also said I would “have no problem with it”). I meant “have no constitutional problem with it. (Although that is probably too cavalier even with the modifier.) I think the subsequent exchanges are in agreement that it would be (although I didn’t read everything carefully), but in any case it would appear that it isn’t an obvious conclusion.

I still don’t get the connection between legislation and school board decisions, though. Everyone seems to think there’s a simple link (i.e. “it’s an arm of the government”). But it still seems like a long stretch, to me.

Thank you for the review of my article.

Zachary Hall emailed me the following after he was unable to post a comment to the site. Since I was able to I will post his email. I might add that I do not consider myself a rising star of the legal community, but I do thank Zak for his kind words. -Chad

“Well, I tried to post a comment, but I couldn’t, because I don’t belong to the online community that sponsors the website. Here’s what I was going to post: As a former member of the Executive Board of the Texas Tech Law Review, I just need to say that the selection and editing process at our law review is very thorough, and includes editing for substance at the front end of the process. We do not select articles for publication that make weak arguments. Mr. Edgington’s article was well-researched, well-written, and made some excellent points. Whether you agree with his position or not, Mr. Edgington’s article makes a great contribution to the evolution vs. creationism debate. We would not have published it if it didn’t. I strongly recommend that every person who has posted a comment on this review read the article for themselves, and not just rely on the review by Mr. Sandefur. Mr. Edgington is a rising star in the legal community, and his article is excellent.

Zak Hall Lead Articles Editor Texas Tech Law Review, Volume 35”

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This page contains a single entry by Timothy Sandefur published on February 17, 2005 7:01 PM.

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